conviction upon the triers, and greatly outweigh the same number of witnesses on the other side. Of all these he would be deprived, if compelled to go to trial upon the naked admission that his witnesses would swear to the facts which he proposes to prove by them. Such admission, if not forgotten, would make but little impression, amid a consistent and rational detail of a similar number of witnesses, deposing, orally, to facts of a counteracting character.

His right to bring his witnesses before the jury is a legal right, and which may be of essential advantage to him, especially in the establishment of controverted facts, and of which he ought not to be deprived. If, therefore, entitled to a continuance in such a case, he ought not to be deprived of it by any admission short of the admission of the fact intended to be proved by his absent witnesses. Smith v. Creason, 5 Dana, 298, 30 Am. Dec. 688; Dominges v. State, 7 Smedes & M. 475, 45 Am. Dec. 315; Goodman v. State, 1 Meigs, 195.

Where the evidence discloses sufficient ground for a continuance, the prosecution cannot frustrate the application by stipulating to admit the evidence sought to be adduced. By constitutional guarantee in every state in the Union the prisoner has a right to the personal presence of witnesses in his behalf. State v. Berkley, 92 Mo. 41; State v. Parker, 13 Lea, 226.

Much controversy has surged about this proposition but the dis senting opinion of Mr. Justice Sherwood in the recent case of State v. Jennings, 81 Mo. 85, will go very far toward placing the the question beyond cavil or demur.

In several jurisdictions this question is determined by statutory enactment and is granted once as matter of right. If allowed as to one joint defendant the others are entitled to the same privilege. Stephenson v. State, 5 Tex. App. 79; State v. Fraser, 2 Bay, 96. But see State v. McComb, 18 Iowa, 43; Thompson v. State, 9 Tex. App. 301. As to the right to a prosecution by continuance, see People v. Fuller, 2 Park. Crim. Rep. 16.

Where the defendant in a criminal case reads, as the evidence of an absent witness, the statement contained in the affidavit for continuance of what the evidence of the witness would be if present, the state may contradict his testimony or impeach the witness as if he were present. And the state may offer the witness himself to contradict such statement so read in evidence. State v. Mann, 83 Mo. 589.

Where a defendant in a criminal case, offers a sufficient affidavit for continuance, stating the facts to which the absent witnesses are expected to testify, it is error to refuse a continuance, even though the prosecuting attorney offers to admit, not simply that the witness would testify to the facts stated, but also, the truth of the facts stated; for the defendant has the constitutional right, to have the witnesses personally present at the trial. Where the circuit court refuses a continuance for the insufficiency of the reasons stated in the affidavit, the court of errors would be extremely cautious and circumspect in controlling its discretion, though they entertained a clear opinion that the reasons were sufficient. Goodman v. State, Meigs, 195.

§ 115. What Evidence is Necessary to Secure.-Privilege of a postponement is an absolute right where either party can produce satisfactory reasons for the request, and although there is abundant dicta intimating that the application to postpone is addressed to the sound discretion of the court, still the careful analysis of the authorities will clearly establish the fact that any arbitrary exercise of this discretion is discountenanced, and where the application is improvidently refused the appellate court will grant relief.

Without attempting an extended tabulation of all the cases that have been deemed sufficient ground for postponement the following may be regarded as among the most prominent, and any evidence based upon one of these several grounds for a continuance is considered pertinent. (1) A disturbed and excited state of the public mind prejudicial to the accused. (2) Illness of counsel. (3) Absence of the defendant, in cases of felony. (4) Surprise at some unexpected development of the case which could not have been reasonably anticipated. (5) Want of adequate time in preparation of the defense. (6) Refusal to admit counsel to the jail premises for the purpose of consultation with the prisoner. In support of these propositions are cited as illustrative: Re Sheriff of New York, 1 Wheeler Crim. Cas. 303; Stewart v. State, 58 Ga. 577; Brown v. State, 24 Ark. 620; State v. Cross, 27 Mo. 332; People v. Kohler, 5 Cal. 72; Jackson v. Com. 19 Gratt. 656; Gra ham v. State, 40 Ala. 659; State v. Bertin, 24 La. Ann. 46; Clark v. State, 4 Humph. 254; Burley v. State, 1 Neb. 385; Sweeden v. State, 19 Ark. 205; People v. Perkins, 1 Wend. 91; Andrews v. State, 2 Sneed, 550; Prine v. Com. 18 Pa. 103; Shapoonmash v.

United States, 1 Wash. Terr. 188; State v. Dooly, 64 Mo. 146; State v. Allen, 64 Mo. 67; Dunn v. Com. 6 Pa. 384; Sneed v. State, 5 Pike, 431; N. Y. Code Crim. Proc. § 465.

When an application for an adjournment is made in good faith and upon proper facts shown, and not for the purpose of delay, it is error at law to refuse same, and such refusal is reviewable. Brooklyn Oil Works v. Brown, 38 How. Pr. 451; Onderdonk v. Ranlett, 3 Hill, 323; Ogden v. Payne, 5 Cow. 15; Hooker v. Rogers, 6 Cow. 577; People v. Vermilyea, 7 Cow. 383; Pulver v. Hiserodt, 3 How. Pr. 49; 2 Tidd. Pr. 708; 1 Archb. Crim. Pr. & Pl. 210; 1 Chitty, Crim. Law, 392; King v. D'Eon, 1 W. Bl. 510, 3 Burr. 1513; Webster v. People, 92 N. Y. 422.

Should it appear, however, that the evidence sought is clearly inadmissible, or is cumulative in its character the motion should be denied. Nelms v. State, 58 Miss. 362; Krebs v. State, 8 Tex. App. 1; Varnadoe v. State, 67 Ga. 768. And so proof of the pendency of a civil action against the accused or even of another indictment for the same offense is insufficient evidence upon which to base an order of continuance. Eighmy v. People, 79 N. Y. 546; Loeffner v. State, 10 Ohio St. 598.

§ 116. What Motion Papers Should Prove. To sustain the application for a continuance the affidavit should show: (1) The material nature of the evidence sought. (2) High degree of probability that it may be secured. (3) The exercise of due diligence in the effort already made to obtain it. Hyde v. State, 16 Tex. 445, 67 Am. Dec. 632; Moody v. People, 20 Ill. 315; State v. Bennett, 52 Iowa, 724; State v. Hagan, 22 Kan. 490; Blige v. State, 20 Fla. 742; McDermott v. State, 89 Ind. 187; People v. Francis, 38 Cal. 183; State v. Gray, 14 Nev. 212, 7 Crim. L. Mag. 84; People v. Vermilyea, 7 Cow. 369; State v. Files, 3 Brev. (S. C.) 304; 1 Tread. (S. C.) 234; Wray v. People, 78 Ill. 212; State v. Smith, 8 Rich. L. 460; State v. Lange, 59 Mo. 418; Mackey v. Com. 80 Ky. 345, 4 Ky. L. Rep. 179; People V. Ah Yute, 53 Cal. 613.

The case of King v. D'Eon, 1 W. Bl. 510 and 3 Burr. 1513, is a leading case on this subject, and contains the principles above formulated which have since prevailed in relation to a continuance. Lord Mansfield says in that case, "three things are necessary to put off a trial: 1. That the witness is really material, and appears to the court so to be. 2. That the party who applies has

been guilty of no neglect. 3. That the witness can be had at the time to which the trial is deferred." Wilmot, J., said that the rule is the same in criminal and civil cases; and Yates, J., said, whatever indulgence the law gives to defendant in civil cases, it ought, a fortiori, to give in criminal.

Where the application for a continuance is made in good faith and is based upon evidence of proper facts which go to negative the theory of mere captious delay it is reversible error to refuse it. Brooklyn Oil Works v. Brown, 38 How. Pr. 451; Onderdonk v. Ranlett, 3 Hill, 323; Ogden v. Payne, 5 Cow. 15; Pulver v. Hiserodt, 3 How. Pr. 49; 2 Tidd, Pr. 708; 1 Archb. Crim. Pr. & Pl. 210; Chitty, Crim. Law, 492; King v. D'Eon, 1 W. Bl. 510; 3 Burr. 1513.

But if there are suspicious circumstances attending the application, then the court will require the party to be more minute in stating the circumstances and facts upon which the application rests. This general rule is found in books of practice both civil and criminal. 2 Tidd, Pr. 708; 1 Archb. Crim. Pr. & Pl. 210; 1 Dunl. 586, 587; 1 Chitty, Crim. Law, 492.

CHAPTER XX.

VARIANCE, IDEM SONANS.

117. The Term Variance Defined.

118. Proofs and Allegations must Correspond.
119. General Rule of Criminal Pleading Stated.
120. Illustrations of these Rules.

121. Only Material Variance will be Regarded.

122. When Variance between Indictment and Proof will Call for Amendment.

123. The Doctrine of Idem Sonans Stated.

124. Instances of Immaterial Variance in Name.

125. Extended Tabulation of the Cases from Rapelje's Criminal Procedure.

117. The Term Variance Defined.-Variance has been defined as a disagreement between the allegation and the proof in some matter which, in point of law, is essential to the charge or claim. House v. Metcalf, 27 Conn. 638; State v. Wadsworth, 30 Conn. 57; Keiser v. Topping, 72 Ill. 229.

§ 118. Proofs and Allegations must Correspond.-Undoubtedly, the rule is that the proofs must correspond with the allegations in the declaration, but the requirement in that behalf is fulfilled, if the substance of the declaration is proved. Nash v. Towne, 72 U. S. 5 Wall. 689, 18 L. ed. 527.

The North Carolina supreme court has decided, that where there is a variance between the allegation and proof in a criminal proceeding, its effect is to vacate the verdict, but leaving the prisoner liable to re-trial. State v. Sherill, 82 N. C. 694.

Where it appears that a party is as well known under his alias name as under his real name, a variance in names will be disregarded. Ehlert v. State, 93 Ind. 76; Hunter v. State, 8 Tex. App. 75.

And it has been held, that where a statute of limitations imposes a specified time within which a criminal prosecution must be instituted, a variance as to the time in which the offense is committed is immaterial, provided the time alleged in the indictment and that proved at the trial, are both within the statutory limitations. State v. Bell, 49 Iowa, 440.